If an oral hearing is calling for, the arbitrator must allow it (at least operating under the Hong Kong Ordinance), so each party can adduce evidence and address argument.
The arbitrator must not carry out his own investigations without the prior consent of the parties. He or she should not use own special knowledge to form a different view of the facts from that given evidence by a witness of fact or an expert witness called by the parties.
The arbitrator should only decide on the issues put before him. Indeed, the arbitrator should see the main thrust of the arguments and decide on it.
The arbitrator must act in a wholly unprejudiced manner throughout. He must act judicially and should never assume the role of an advocate for the appointor.
Failure to observe these principles (and may more) could constitute “misconduct” (admittedly applicable only to domestic arbitration), which could lead to removal of the arbitrator by the court (s 25(1)) and/or setting aside of the award (s 25(2)), or a remission of the award (s 24)
Control of arbitration
There are very limited grounds for challenging an arbitrator. Article 12 of ML provided the only basis of ‘justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.’ Article 14 of ML also provides for the failure or impossibility to act.
A party used to be able to challenge the arbitrator on other ground such as excessive dilatoriness and gross incompetence. Under Section 25 of HKAO allows the court to remove the arbitrator and/or set aside the award if the arbitrator has misconduct” himself or the proceedings.
“Misconduct” can of course be widely interpreted. It is not just bias or partiality. If an arbitrator through lack of talent, experience or diligence, is incapable of conducting the reference in a manner which the parties are entitled to expect, that is ‘misconduct’.
See Assignment.
Relevant Clauses
